Sw v. The Secretary for Justice

HCAL 191/2016

[2019] HKCFI 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 191 OF 2016

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Before:  Hon Li J in Court

Dates of Hearing: 22, 23 January and 5 February 2018

Date of Judgment:  10 January 2019

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J U D G M E N T

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1.The applicant has been a sex worker (SW) for about 30 years. She started providing services in nightclubs and gradually changed to escort agencies. After establishing sufficient client network, she provided services in a one-woman-brothel (OWB)[1].

2.In nightclubs and escort agencies, the staff screened clients beforehand.  She could avoid violent and drunken clients.  This however resulted in less autonomy.  

3.While serving in an OWB, she was in constant fear of violent and abusive customers.  There were frequent police undercover operations.  She was unable to have a maid[2] to step up her safety.  She was unable to screen customers.  Landlords asked for higher rent.  There was triad extortion.  

4.In her 20 years as a SW in an OWB, she was robbed 20 times.  Robberies were prone in this trade.  Occasional murder cases were disturbing too.

5.She is advised by her counsel that the Crimes Ordinance, in particular ss. 137[3], 139[4], 143[5], 144[6], 145[7] and 151[8], imposes unnecessary and disproportionate restrictions on SW in an OWB.  

6.These provisions have the combined effect of compelling SW to work alone and unable to cooperate with others to provide a safe work environment.

7.She seeks a declaration, among other things, that the above provisions contravene Article 5(1) of the Hong Kong Bill of Rights (HKBOR) and Article 39 of the Basic Law of Hong Kong (BL)[9].  

The gist of the applicant’s argument

8.Mr. Nigel Kat, SC, for the applicant, argues that SW are more prone to violent crimes such as murder, robbery, rape and blackmail.  This situation is facilitated or caused by the isolated venues of their work—OWB.  

9.Mr. Kat points out that the affirmations from the respondent demonstrates that when a SW works in close-knit work settings, with security personnel and CCTV equipment, they would be safer.[10]

10.In support of his argument, Mr. Kat also relies on the findings of Dr. Jessica Li, Dr. Susanne Choi and others.

11.Dr. Li analyzed police records in a two-year period from 2008-2010.  More than 90% of the reported cases happened indoors, mostly in OWB.  Old buildings with low security facilities and poor management appeared to attract more offenders.  Dr. Li pointed out that the ‘vice establishment’ definition in the Crimes Ordinance prevented mutual support among SW.  The offence of living on the earning of prostitution made it difficult for SW to employ security services on their own.  Monitoring the entrance of the building was inadequate.  She stressed that ‘the usefulness of CCTV is minimal unless it is monitored by security staff at all times’. Negative experiences with the police deterred SW from reporting.  Dr. Li also pointed out that the public were reluctant to have any contact with SW, making natural surveillance impossible.  This was further compounded by the provisions criminalizing owners, tenants and person-in-charge of premises for permitting habitual prostitution.[11]

12.Dr. Choi’s articles concerned barriers to consistent condom use in transactional sex, health control and HIV prevention among SW in mainland China.  Dr. Choi mentioned that informal networks of SW were useful in screening clients who refused to use condoms.[12]

13.Rev. Hui of the JJJ Association[13] pointed out that there was an increasing trend of SW subject to violence, abuse and crime.  The isolated working environment in OWB contributed to this situation.  The law made it difficult for SW to employ third parties to improve their security at work.  CCTV and networks of SW were not effective measures to prevent violence.  SW in OWB were subject of extortion by triads.  SW were generally reluctant to report to the police as it would invariably incriminate third parties.  The reporting rate dropped consistently in the past few years.  This reflected that SW had little confidence in the police.[14]

14.Based on the evidence above, Mr. Kat argues that Art. 5(1) HKBOR is engaged.  Art. 5(1) imposes duties on the Government to take effective measures to protect SW from violence.  It also requires the Government to refrain from conduct which increases the risk.

15.The combined effect of those provisions in Part XII of the Crimes Ordinance forces SW to work in OWB and prevents SW from taking actions to alleviate the risk.  The applicant’s right to security is therefore infringed.  It cannot be justified.

16.Mr. Kat urges this Court to adopt the reasoning of the Canadian Supreme Court in Canada v Bedford[15]when considering the constitutionality of the provisions in Part XII of the Crimes Ordinance mentioned above.

The gist of the respondent’s argument

17.Mr. McCoy, SC, argues that Art. 5(1) is not engaged.  Even if this court rules otherwise, the infringement can be justified.

18.There is no correlation between the current legal restrictions and the security risks.  He points out that currently many OWB occupy different cubicles in a sub-divided flat.  It is tantamount to a less restrictive work environment.  However, SW have to provide services in individual cubicles.[16] Further, even if SW were allowed to employ security guards or maids, they would not do so because of lack of space and financial means.

19.The regulation of prostitution in Hong Kong is a socio-economic issue which is best left to the Government and the Legislature. The Crimes Ordinance has been updated, from time to time, to tackle exploitation of SW and triad activities in the sex trade.  The Court should leave a wide margin of discretion to the Government.  If the applicant succeeds in this judicial review, it would force the Government to liberate the sex trade in Hong Kong without any consultation in the society.

20.Mr. McCoy argues that the evidence of the applicant and various witnesses[17] only shows incidents of violence which are uncommon.  In particular, Mr. McCoy queries the assertion by the Executive Director of AFRO[18] that the mental health problems of SW are caused by the state of the law.  Mr. McCoy doubts how the relaxation of the legal restrictions can improve economic safety, lessen social stigma and ease competition in the sex trade.

21.In relation to the survey by AFRO in 2007[19], the sample of SW working in OWB in the survey was too small.  Mr. McCoy contends that a meaningful conclusion cannot be drawn.

22.In relation to the interpretation of Art. 5(1), Mr. McCoy urges this court to bear in mind the difference in context and languages used in the Canadian Charter, as well as the social conditions in the Canadian cases.  Section 7 of the Canadian Charter provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

23.In considering issues of human rights, Hong Kong Courts have distinguished themselves from and declined to follow Canadian authorities.[20] In addition, the principles of fundamental justice in the Canadian Charter are different from the proportionality test in Hong Kong.[21]

24.Mr. McCoy accepts that the jurisprudence of the UNHRC is persuasive.  The UNHRC cases have consistently applied the right to security in extreme situation involving direct death threats, harassment and intimidation.  There is no case concerning the increase in safety risks.

The scope of Art. 5 HKBOR

25.In the course of argument, Mr. McCoy raises the point that Art. 5(1) consists of a conjoint right—right to liberty and security—relying on HKSAR v Coady.[22]There is no free standing right to security.  “Security” must be understood in the context of “liberty”.  The Court of Appeal in Coady has held that Art. 5(1) only applies to direct interference of liberty, it does not extend to scrutinize offence-creating provisions.  Mr. McCoy stresses that this interpretation, if accepted by this court, is fatal to the applicant’s case.

HKSAR v Coady

26.It is essential to set out the reasoning of Coady.

27.The appellant was convicted of murder and sentenced to life imprisonment.  On appeal, she challenged the judge’s direction that an intention to cause really serious bodily injury (“grievous harm rule”) was a sufficient mental element for murder.  She argued that there must at least be subjective foreseeability that death might result before she could be convicted of murder.  The grievous harm rule was arbitrary in that a person could be convicted of a more serious crime than she foresaw.  It followed that the life imprisonment ordered after her conviction was an arbitrary deprivation of liberty and was inconsistent with Article 5(1), 10 and 11(1) of the HKBOR.

28.Art. 5(1) of the HKBOR provides:

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

29.The Court of Appeal rejected this argument. Keith JA held that the language and structure of Art. 5(1) only provided for the fair operation of the law in relation to the arrest and detention of a person.  It also set out the procedural guarantees in the sub-paragraphs. Art.5(1) did not empower the court to review the substantive law for the breach of which a person might be detained.

“In summary, these rights provide protection against, and remedies for, arrest or detention which is not in accordance with the laws relating to arrest or detention or if those laws cannot be objectively justified. They do not suggest that the arrest or detention of a defendant is impermissible if any of the elements of the offence which the defendant is alleged to have committed cannot be objectively justified.”[23]

30.Keith JA further addedthat Art.5(1) might be used to strike down laws concerning arrest or detention.  It however did not permit judicial scrutiny of other laws the breach of which would allow arrest or detention.

“We are satisfied that in addition Art. 5(1) contemplates judicial scrutiny of those laws which relate to arrest and detention, and permits the court to strike down such laws if they cannot be objectively justified.… But what we are strongly inclined to conclude is that Art. 5(1) does not permit judicial scrutiny of other laws, i.e. those laws for which arrest and detention is authorised if they are broken. Those laws may well be struck down because they violate other specific rights protected by the Bill of Rights.”[24]

31.His Lordship cited Hugo van Alphen v The Netherlands (Communication No. 305/1988) in support.[25]  His Lordship further pointed out that the European Court of Human Rights (ECtHR) had scrutinized laws under Art. 5(1) of the European Convention on Human Rights (ECHR)[26] relating to arrest and detention but there was no case-law on the scrutiny of other laws as mentioned above.

32.At the end, Keith JA thought that it was not necessary to reach a concluded opinion on the interpretation of Art.5(1).  The Court of Appeal ruled that the grievous harm rule was not arbitrary and could be justified based on other case-laws.

“Having said all that, it is not, in our view, necessary to reach a concluded opinion as to whether the view which we are inclined to take is correct. That is because we have reached the conclusion that, on the assumption that Art. 5(1) permits the court to scrutinise for arbitrariness laws which result in the arrest and detention of persons who break them, the “grievous harm” rule is not arbitrary. It can be objectively justified.”[27]

33.Mr. Kat points out that the Court of Appeal in Coady did not consider whether there was a substantive independent right of “security of person”.  The Court only decided on whether a person could be deprived of his liberty as a consequence of a law which was not arbitrary.

34.I do not agree.  In my view, had it been that there was an independent right of “security of person”, the Court of Appeal would have been able to scrutinize “other laws”.[28]

35.Mr. Kat adopts the general comment of United Nation Human Rights Committee[29] (UNHRC) on Art.9 of ICCPR (the equivalent of Art. 5 of HKBOR).  The UNHRC states that there are two distinctive rights under Art. 9 of ICCPR—right to liberty and right to security in the following terms:

“2. Liberty of person concerns freedom from confinement of the body, not a general freedom of action. Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity, as further discussed in paragraph 9 below. Article 9 guarantees those rights to everyone….

9. The right to security of person protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained.  For example, officials of States parties violate the right to personal security when they unjustifiably inflict bodily injury.  The right to personal security also obliges States parties to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors.  States parties must take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury.  For example, States parties must respond appropriately to patterns of violence against categories of victims such as intimidation of human rights defenders and journalists, retaliation against witnesses, violence against women, including domestic violence, the hazing of conscripts in the armed forces, violence against children, violence against persons on the basis of their sexual orientation or gender identity, and violence against persons with disabilities.  They should also prevent and redress unjustifiable use of force in law enforcement, and protect their populations against abuses by private security forces, and against the risks posed by excessive availability of firearms. The right to security of person does not address all risks to physical or mental health and is not implicated in the indirect health impact of being the target of civil or criminal proceedings.”

36.Mr. Kat also relies on the opinion of Dr. M. Nowak in his book UN Covenant on Civil and Political Rights: CCPR Commentary.

“A systematic interpretation reveals that security of person provides the individual with legal claims that are independent of liberty of person. In keeping with the ordinary meaning of this word (Art. 31(1) of the VCLT[30]), these claims are directed primarily against interference with personal integrity by private persons.” [31]

37.Dr. Nowak cited the comment of the UNHRC in Delgado Páezv Colombia[32]to support his conclusion above. The UNHRC held in Delgado Páez that there was violation of Art. 9(1) with the following comment.

“5.5 …Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.” (my emphasis)

38.I note that before passing the comment above, UNHRC said this in the beginning of the same paragraph:

“5.5 The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant...”

39.According to the above, the right to life, the right to liberty and the right to security of the person have been dealt with in separate clauses in the Covenant, I cannot follow the logic of the UNHRC concluding that“an interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.”

40.Mr. Delagdo Páez was a teacher in Leticia, Colombia.  He alleged that he was subjected to persecution by the Colombian authorities, because of his "progressive ideas in theological and social matters".  His honour and reputation were attacked by the authorities who falsely accused him of theft.  He was eventually acquitted of the charge.  His professional qualifications were unjustly put into question.  He was suspended from his teaching post.  He complained to various authorities including the Teacher’s Union, the Secretary of Education and the Attorney General of Colombia but of no avail.

41.He received death threats on the phone demanding him not to return to Leticia and to withdraw his complaint.  His work colleague was shot dead outside the teachers’ residence in Leticia.  He was attacked in the city of Bogota.  His resignation was only accepted after he deleted the account of pressures and threats in his resignation letter.  Mr. Delgado Páez subsequently fled to France and was granted asylum.

42.The Colombian Government did not address those issues upon the request of the UNHRC.  The UNHRC thus treated the case as though the threats were known and nothing was done by the Colombian Government.  The UNHRC found that the State party had not taken, or had been unable to take, appropriate measures to ensure Mr. Delgado Páez’s right to security under Art. 9(1).

43.In my judgement, the situation in Delgado Páez was within the ambit of Art.6(1) of ICCPR[33]—the right to life—“Every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of his life.”

44.In this regard, I adopt the interpretation of Art.2(1) of the ECHR in Osman v The UK by the ECtHR. Art. 2(1) of the ECHR as follows—Everyone’s right to life shall be protected by law.  No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law—which is substantially the same as Art. 6(1) of ICCPR (Art. 2(1) of HKBOR).

45.The ECtHR set out the ambit of Art. 2(1) in the following terms[34]:

a.  The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.

b.  The state has to put in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.

c.  The authorities have to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.

d.  The obligation would not impose an impossible or disproportionate burden on the authorities.

e.  The authorities knew or ought to have known the existence of a real and immediate risk to the life of an identified individual(s) from the criminal acts of a third party.

f.  The authorities failed to take reasonable measures to avoid that risk.

46.In Osman, the widow of Mr. Osman complained that the police failed to take reasonable steps to prevent the teacher of her son from causing the death of Mr. Osman and seriously injuring her son by gunshot.  The teacher had developed obsessive attachment to her son in a period of over a year.  Despite that the Osman family had reported various incidents of harassment, the police failed to take it seriously.

47.The ECtHR held that there was no violation of Art.2(1).  The complainant failed to point to any decisive stage in the sequence of events leading to the shooting that the police knew or ought to have known the lives of the Osman family were at real and immediate risk.  The police were entitled to rely on the psychiatrist’s assessment that the teacher did not display signs of mental illness or a propensity to violence.

48.In my view, Art. 6(1) ICCPR aptly covers the situation.  It is not clear why the UNHRC interpreted Art.9 of ICCPR to cover the situation in Delgado Páez.

The jurisprudence relating to Art. 5(1), ECHR (Art. 5(1) HKBOR)

49.In a leading text on ECHR—European Convention on Human Rights Commentary—Dr. Christoph Grabenwarter pointed out that there is a single right under Art.5(1) ECHR.  In page 64 of his book, Dr. Grabenwarter commented,

“ The wording of Article 5(1) seems to refer to two different protected goods, namely ‘liberty’ and ‘security’ of persons. However, the expression ‘liberty and security of persons’ must be read as a single right and, consequently, ‘security’ must be understood in the context of ‘liberty’. In particular, the notion ‘security’ cannot be interpreted so as to impose an obligation on the States to protect a person’s security nor does it establish an individual right to security of person.

Originally, the right to security did not have any independent significance. Today, it constitutes the basis of the requirement that any deprivation of liberty must comply with the rule of law and, in particular, the general principle of legal certainty. The right to security is affected, for instance, where an individual is arrested by the authorities of one State on the territory of another State without the consent of the latter. Thus, the right to security provides to a certain extent for protection from deprivation of liberty outside of territory of a particular Member State.” [35] (my emphasis)

50.Incidentally, Dr. Nowak mentioned in his book similar background and pointed out that a number of legal scholars followed the line of reasoning[36] as Dr. Grabenwarter above.

“ Like Art. 3 of the UDHR, Art. 5(1) of the ECHR, Art. 7(1) of the ACHR and Art.6 of the ACHPR[37], Art. 9(1) of the Covenant guarantees liberty of person together with the right to security of person. The significance of this right is the subject of controversy…

On the other hand, the Strasbourg institutions do not attribute any independent significance beyond personal liberty to the right to security in Art. 5 of the ECHR. The travaux preparatoires to Art. 9 are of little assistance on this issue, as are those of comparable provisions in other instruments: whereas the original drafts in the UNHRC related only to the prohibition of arbitrary arrest or detention, a 1952 British proposal provided for the first time that the provision be headed by the general right to liberty and security of person. The sentence was adopted without discussion in the same year as formulated in an amendment submitted by Poland, for which Art. 3 of the UDHR and Art. 5(1) of the ECHR apparently served as models. In the 3d Committee of the GA, the Israeli delegate spoke out against the adoption of a right to security going beyond the protective scope of Art. 9. In his opinion, this right would rather represent a general heading for all the rights in Arts. 6 to 17 guaranteeing the security and inviolability of the person. A systematic interpretation reveals that security of person provides the individual with legal claims that are independent of liberty of person. In keeping with the ordinary meaning of this word (Art. 31(1) of the VCLT[38]), these claims are directed primarily against interference with personal integrity by private persons.” [39] (my emphases)

51.In fact, the ECtHR has consistently interpreted Art. 5(1) ECHR as an article comprising of one single right.[40] There is no independent right to security of person.  In the most recent case of Giorgi Nikolaishvili v Georgia, the ECtHR stressed the following:

“  The Court reiterates that the expression “liberty and security of person” in Article 5 § 1 must be read as a single right and that, consequently, “security” should be understood in the context of “liberty”.  The protection of “security” is concerned with guaranteeing an individual’s personal liberty against arbitrary interference by a public authority (see Kemal Güven v. Turkey (dec.), no. 31847/96, 30 May 2000). The “security” clause reminds the national authorities of the requisite obligation to follow the rule-of-law safeguards and other rudimentary forms of legal protection when the deprivation of a person’s liberty is at stake (see Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998‑III, §§ 122-123).

The Court is of the opinion that the “right to security of person” was understood by the authors of the Convention to imply more than just an obligation to give legal protection to a person’s physical liberty (see paragraphs 45-46 above).  The subsequent interpretation of Article 5 § 1 of the Convention has shown, “what is at stake [under the above provision] is both the physical liberty of individuals as well as their personal security” (see Kurt, cited above, § 123).  Relying on the notion of “security”, the Court has found that national authorities who are competent to deprive a person of his or her liberty are normally expected to act in good faith in their dealings with the latter (see Čonka v. Belgium, no. 51564/99, §§ 41 and 42, ECHR 2002‑I; Bozano v. France, judgment of 18 December 1986, Series A no. 111, § 55).” [41] (my emphasis)

Which interpretation to adopt?

52.In view of the dichotomy, I invite counsel to make further submission on this point.

53.Mr. Kat for the applicant points out that the language and context of Art. 9(1) ICCPR are identical to Art. 5(1) of the HKBOR.  General Comment 35 of the UNHRC is authoritative and highly persuasive.  The decisions of ECtHR may provide useful references only.

54.Mr. Kat argues that the drafter of ICCPR did not limit their consideration to liberty rights.  He relies on Dr. Nowak’s comment cited in paragraph 36 above.  In my view, that is not entirely accurate.  Dr. Nowak did acknowledge the difference in interpretation saying “…the travaux preparatoires to Art. 9 are of little assistance on this issue, as are those of comparable provisions in other instruments.” [42]

55.Mr. Kat points out that the ECtHR ascribed the right to protection for physical and psychological integrity to Art. 8(1) ECHR—the “right to respect for private and family life”—there is no need to interpret Art. 5(1) ECHR in such a way as to cover the same. However, the UNHRC recognized such protection as a component of security of person under Art. 9(1) ICCPR. Further, the ICCPR (Art. 17 and 23) and HKBOR (Art. 14 and 19) only protect “privacy and family life” which is a materially different concept from “private life” under Art. 8(1) ECHR. 

56.Mr. Kat relies on Pretty v UK [43] to illustrate the first part of his argument above.  In §61 of the judgment, the ECtHR commented that “private life” included physical and psychological integrity of a person.  To understand what the ECtHR meant, I set out the whole paragraph:

“61  As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition.  It covers the physical and psychological integrity of a person. It sometimes embraces aspects of an individual’s physical and social identity.  Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8.  Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.  Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

62  …The Court would observe that the ability to conduct one’s life in a manner of one’s own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned…  However, even where the conduct poses a danger to health, or arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State’s imposition of compulsory or criminal measures as impinging on the private life of the applicant within the scope of Article 8(1) and requiring justification in terms of second paragraph.”[44]

57.In a later case ĐURĐEVIĆ v Croatia, the ECtHR held that ‘the concept of “private life” extends also to the sphere of the relations of individuals between themselves.  There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one’s physical integrity’.[45]

58.The ECtHR in ĐURĐEVIĆ further held that besides abstaining from such interference, the State has positive obligation to adopt measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.[46]

59.In ĐURĐEVIĆ,the applicant complained that he was attacked by a fellow pupil at school causing him serious injuries.  The application was made under Art.3 and Art. 8 ECHR. The ECtHR held that the events leading up to the complaint related to the sphere of “private life” within the meaning of Art. 8.  The ECtHR found that the school had investigated the incidents and concluded it was an accident. The State therefore was not aware of the risk of violence and could not be held responsible for lack of an adequate response.  The violence in question was not specific and lacked details.  The ECtHR rejected the application.

60.In my judgment, the “physical and psychological integrity of a person” under Article 8 ECHR is a component of the personal autonomy to conduct one’s life. Protection against attack on the physical integrity of an individual under Art. 8 is also covered by Art. 3 ECHR. Indeed, the application in ĐURĐEVIĆ was made under both Art.3 and Art.8.

61.In my view, Art. 3 EHCR[47] which is the equivalent of Art. 7 ICCPR and Art.3 HKBOR—prohibition of torture—basically covers the obligations of a State to protect physical and psychological integrity of a person under Art. 8 ECHR.

62.Mr. Kat also reiterates that Art. 17 and 23 ICCPR[48] protects only “privacy” and family life.  They are materially different from Art. 8(1) EHCR which protects “private life”.

63.In General Comment 16 on Art. 17—right to privacy—the UNHRC also used the term “private life” in defining the scope of the article. 

“1. Article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation. In the view of the Committee this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. The obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right...

7. As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant. Accordingly, the Committee recommends that States should indicate in their reports the laws and regulations that govern authorized interferences with private life...

10. The gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant. In order to have the most effective protection of his private life, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes…”[49]

64.I also find some support from Dr. Nowak’s book. At page 385, Dr. Nowak commented:

“The prohibition of interference with privacy in the narrow sense relating to the individual was adopted from Art. 12 of the UDHR and was the subject of virtually no debate during its drafting. The case law on individual communications as well is of no assistance in ascertaining the exact meaning of this word. Despite the discrepancy in the two authentic English texts, it may be assumed that “private life” under Art. 8 of ECHR and “privacy” under Art. 17 of the Covenant basically mean the same thing, such that resort may also be had in the alternative to the holdings of the Strasbourg organs.”[50]

65.In my view, “privacy” bears a similar meaning as “private life”. The distinction by Mr. Kat is not justified. Given that there is Art. 17 ICCPR (equivalent to Art. 14 HKBOR) which is similar to Art. 8 ECHR, the argument of Mr. Kat in paragraph 55 above is also not valid.

66.Mr. McCoy stresses that the concept of security is dependent upon the concept of liberty.  In fact, there is no case-law from ECtHR holding otherwise.  There is a long line of authorities from ECtHR holding this view consistently[51]. The ECtHR stressed that “any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness”[52].

67.Mr. McCoy argues that this approach is consistent with that of the Court of Appeal in Coady.

68.Mr. McCoy points out that even if the facts in Delgado Páez did not fall within the concept of security, the State is still under a duty by virtue of the “right to life”.  He maintains that the comment of UNHRC in Delgado Páez is questionable.[53]

69.Mr. McCoy points out that in the recent case of Orly Marcellena & others v Philippines[54], the UNHRC cited its comment in Delgado Páez for the interpretation of a “right to security” under Art. 9(1).  Mr. McCoy stresses that the same protection could be achieved under Art. 6(1) ICCPR—the “right to life”.

70.Ms. Marcellena was the former Secretary General of a human rights organization in the Philippines.  In April 2003, she and Mr. Gumanoy, the former chairman of a farmers’ organization, were leading a fact-finding mission on the killing and disappearance of civilians allegedly done by the military in the town of Pinamalayan.  The group was threatened by the military and kept under surveillance.  They eventually decided to conclude the mission and leave the town.  The group was stopped at a highway by armed men known to be associated with the military.  All their belongings were seized.  The other members of the group were tied up and released at different spots along the highway.  Ms. Marcellena and Mr. Gumanoy were taken away and shot dead subsequently.

71.The relatives of the two deceased filed a complaint for kidnapping and murder before the Department of Justice.  It was dismissed in December 2004 on the ground of insufficient evidence. Applications for review and reconsideration were filed but all were dismissed by April 2007.  The relatives filed an appeal to the President and the result was pending at the time of the hearing before the UNHRC.  A complaint was filed with the Commission on Human Rights of the Philippines.  The relatives withdrew the complaint as they thought they would not obtain justice from the Commission.

72.The UNHRC ruled that the facts of this case give rise to issues under Art. 2(3)[55], Art. 6(1)[56] and Article 9(1)[57].

73.The UNHRC found that the absence of investigations to establish responsibility for the kidnapping and murder of the victims amounted to a denial of justice.  The State was only found in breach of Art. 6(1) for failure to conduct proper investigation of the death of the victims and take appropriate action against those found guilty.

74.The UNHRC also found that the State failed to take appropriate measures to ensure the victims’ right to security of person protected under Art. 9(1).  The UNHRC cited with approval the comment in Delgado Páez.[58]

75.In my judgment, the facts of the Marcellana case are within the scope of Art. 2, HKBOR (Art. 6(1) ICCPR)—right to life.  Not only did the State fail to investigate, it failed to protect the victims whose lives were at risk[59].  It is unclear why the UNHRC see the need to interpret Art. 9(1) to cover the situation. In my view, Art. 2, HKBOR (Art. 6(1) ICCPR) fully covers the situation.

76.I agree with the comment of Mr. McCoy in relation to the same issue in Delgado Páez.

Commissioner of Police of the Metropolis v DSD [2018] UKSC 11

77.This case was decided on 21/2/2018.  It was after the conclusion of our hearing.  Mr. Kat drew my attention to this case of the Supreme Court of UK by filing a further note.  I allowed further written submission in relation to this case from both parties.

78.Mr. Kat argues that that the DSD case further supports the applicant’s case.  Art. 5(1) imposes a positive obligation on the State to take appropriate measures to protect individuals from foreseeable threats to life or bodily integrity proceeding from any government or private actors.

79.Mr. Kat cites Lord Hughes’ comments that the threshold for triggering the ancillary positive obligation under Art. 3 EHCR is falling.  A great majority of violent and sexual offences will suffice.[60]

80.He stressed that in our case, the level and severity of violence in evidence and pattern, facilitated by the impugned provisions, are more than sufficient to trigger the obligation under Art. 3 ECHR—the equivalent of Art. 3 of HKBOR—as decided in DSD.

81.Mr. McCoy points out that the applicant should not be allowed to rely on different scenarios engaging distinct and separate constitutional protections.  He points out that DSD is about investigation failures of the police.  Our case is an application for a declaration that the provisions designed to protect SW from abuse are unconstitutional.

82.This application is based on Art. 5(1) of the HKBOR.  There is a radical shift of the applicant’s position to Art. 3 and Art. 2 of the HKBOR.

83.Mr. McCoy maintains that Art. 5(1) is not engaged as a matter of law.  The evidence falls far short of substantiating any direct cause between those provisions in the Crimes Ordinance and a breach of Art. 5(1).

84.Mr. McCoy argues that the DSD case only decided a narrow issue: “whether a person in the claimants’ position needs to establish that the serious defects in the investigation in question were attributable to failures of a structural nature, and not to purely operational failures.” [61]

85.Mr. McCoy pointed out that Lord Hughes’ comment is the minority judgement.  Take it to the highest, the positive obligation would only arise if there is failure of the Hong Kong police to investigate offences under those provisions in the Crimes Ordinance.  It is not a duty to remove all possibilities where harm will be done to individuals by third parties as the applicant argues.

86.Given the analysis above in relation to the scope of Art. 5(1) of the HKBOR, I do not think there is a separate right to security of person under this article.  The judgement of DSD is not applicable.  This is sufficient for me to reject Mr. Kat’s argument.

87.In DSD, two victims of sexual assault committed by a serial rapist sued the police.  They alleged that there were serious failures to investigate into those crimes.  These failures constituted a violation of their rights under Art. 3 ECHR.[62]  In my view, the issue decided by the majority is that Art. 3 imposes a positive duty to investigate reported crimes.  Those serious failures which are purely operational would suffice to establish a claim.[63]

88.As Lord Neuberger concisely put it,

“If the statute did not provide adequate protection, there was a systemic failure, and it was both unnecessary and pointless to consider the operational aspects of the legal system. However, clearly to my mind, it does not follow that, if the statutory provisions had complied with article 3, but the legal processes had been defective, the United Kingdom would have been acquitted of infringing article 3. Indeed, the court’s summary of the law in A v United Kingdom, para 22 contains nothing to suggest that the state’s obligation there being discussed should be limited to systemic matters.”

89.However, before the examination of this positive obligation under Art. 3, a claimant must establish that he/she has suffered ill-treatment which attains a “minimum level of severity”.  Once this threshold is satisfied, it is for the court to decide whether the State has failed its duty.

90.The evidence of ill treatment must be clear and specific. There should be details as to the place, time and nature of the acts complained of. In ĐURĐEVIĆ v Croatia, the ECtHR rejected the claim under Art. 3 and 8 on the ground that the evidence was too vague and general albeit some of the injuries attained the necessary threshold.[64]

91.Even assuming there is a separate right to security of person under Art. 5(1) HKBOR, in my view, the evidence filed by the applicant is too general and lacks specific details, it is not sufficient to trigger a claim.

Conclusion

92.The structure and language of Art. 5 HKBOR left me in no doubt that “security” must be read in the context of “liberty”.  There is no separate right to “security of person”.  I agree with the Court of Appeal in Coady. I am bound by it.

93.I also agree with the approach of the ECtHR in the interpretation of Art. 5(1) ECHR which is substantially the same as Art. 5(1) HKBOR.  The difference in structure of the two articles does not warrant a different approach.

94.In the circumstances, I dismiss the application for judicial review.  It is not necessary for me to consider the evidence in this case.

95.I make a costs order nisi to the respondent.

Mr. Nigel Kat, SC, leading Mr. Azan Marwah, instructed by Messrs Daly, Ho & Associates, for the applicant

Mr. Gerard McCoy, SC, instructed by the Department of Justice, leading Ms. Audrey Parwani, SPP, and Mr. Andrew Li, SPP, of the Department of Justice, for the respondent